NLSIR Announcement

(NLSIR Announcement is below)

The National Law School of India Review

Submission Guidelines

About NLSIR

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 30(1). The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. For more than 25 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, senior counsels practicing at the Indian bar, and several renowned academics from national and foreign universities.

The most recent volume of the NLSIR, Vol. 29 will feature contributions by Professor M.G. Bridge, Cassel Professor of Commercial Law at London School of Economics and Professor of Law, National University of Singapore, and Professor Richard Pierce, the Lyle T. Alverson Professor of Law at George Washington University, among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat’s Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

Categories:

Papers may be submitted under the following categories:

1.      Long Articles: Between 5000 and 8000 words, inclusive of footnotes. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. It is advisable, though not necessary, to choose a theme that is of contemporary importance. Purely theoretical pieces are also welcome.

2.      Essays: Between 3000 and 5000 words, inclusive of footnotes. Essays are far more concise in scope. These papers usually deal with a very specific issue, and argue that the issue must be conceptualized differently. They are more engaging, and make a more easily identifiable, concrete argument.

3.      Case Notes and Legislative Comments: Between 1500 and 2500 words, inclusive of footnotes. This is an analysis of any contemporary judicial pronouncement or a new piece of legislation whether in India or elsewhere. The note must identify and examine the line of cases in which the decision in question came about, and comment on implications for the evolution of that branch of law. In case of legislative comment the note must analyze the objective of the legislation and the legal impact the same is expected to have.

Authors are requested to note that pieces engaging with a foreign theme or legal development, in any of the above categories, should also explain its relevance in the Indian context, whether by virtue of similar laws or otherwise.

Formatting and Citation Guidelines

The body of the manuscript should be in Times New Roman, font size 12 with double line spacing. The footnotes should be in Times New Roman, font size 10 with single line spacing.

The manuscript should contain only footnotes (and not end notes) as a method of citation. Citations must conform to the Bluebook (20^th edn.) style of citation.

How to submit?

The NLSIR only accepts electronic submissions. Submissions may be emailed to mail.nlsir@gmail.com under the subject heading “30(1) NLSIR – Submissions.” All submissions must contain the following:

1.      The manuscript in doc.x format. The manuscript should not contain the name of the author or his/ her institutional affiliation or any other identification mark.

2.      A cover letter containing the name of the author, professional information, the title of the manuscript, and contact information.

3.      All manuscripts must also contain an abstract of not more than 150 words.

The last date for submissions to Volume 30(1) is November 1, 2017.

More Information

For more information on NLSIR, please log on to www.nlsir.com.

Subscribe to the NLSIR

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Gary B. Born Essay Writing Competition: Results

Message from CARTAL, NLU Jodhpur:

The NLU Jodhpur Centre for Advanced Research and Training in Arbitration Law (CARTAL) is pleased to announce the results of the Gary B. Born National Essay Writing Competition on International Arbitration. The name of the winners can be accessed from here.

Major Commercial Law Reforms Introduced in India

The President of India has promulgated two ordianances bringing into force sweeping amendments to the Arbitration and Conciliation Act, 1996 and introducing Commercial Courts (see our previous post on the previous Commercial Divisions Bill) in every District in India. The Ordinances can be accessed from here and here. If these amendments are passed subsequently in the Winter Session of the Parliament, these developments are likely to go a long way in reforming commercial dispute resolution in India. Once reforms on procedural law are in place and effective, India can look at reforming its substantive contract law. An extremely interesting period for Indian commercial law.

Two New Bills to be Introduced

The Hindu reports today that two Bills are due to be tabled shortly. One, to amend the Representation of People Act, 1951 to nullify the SC judgement barring adjudged criminals from contesting elections. SC had withdrawn the concession law had granted to sitting representatives, if found guilty by lower court, not to be disqualified provided an appeal is filed within 90days. 

Second Bill is also with far reaching impact, for better or worse time will tell, abolishing the collegium system of judges appointment. The system is sought to be replaced with a Judicial Appointment Commission. See here for a paper on Judicial Appointment Commission prepared for NAC by a member. The document is sourced form PRS India. 

Novartis Judgment

Supreme Court of India yesterday (01/04/13) delivered the much awaited Novartis judgment.  Responses of some of the pharma groups here. Find the Hindu's editorial here. Novartis response may be read here. Activists lauded the decision.

Another Arbitration under the Indus Water Treaty 1960 betweeen India and Pakistan?

India has been planning to build a barrage across the mouth of the Wular Lake for almost three decades. The chief aim of the project has been to regulate the water storage and to maintain a proper depth in the Lake. This, according to news reports, would aid tourism and navigation across the Lake. The work on the project seems to have commenced in 1984. Pakistan seems to have objected to the project in 1986 resulting in suspension of works in 1987. Although India re-commenced work on the Lake, the work was stopped again in 2007 when Pakistan imposed suspension as a pre-condition for discussions on the project. Both countries have held about eight rounds of negotiations but nothing concrete has so far fructified. Pakistan's apprehension has been that the project is a storage project thereby bringing the Indus Water Treaty into play. River Jhelum, it may be noted, feeds the water to Wular Lake.Pakistan apprehends that the project would disrupt the canal projects of Pakistan.  India's contention is two-fold: (1) Indus Water Treaty permits building structures for "non-consumptive use of navigation"; (2) the project is beneficial to Pakistan as there would be adequate water supply during the lean winter period.

India has been sharing technical details of the project but news reports suggest that India is frustrated over the response or the lack of it from Pakistan on the project. Therefore, India seems to have conveyed the message to Pakistan that it would go for arbitration in the project considering the prolonged delay in both countries arriving at a consensus. It may be noted that Pakistan had stated that the issue had to be resolved through a neutral expert or through arbitration in 1986.

Some news reports on the topic are listed below:

• Tulbul: India may seek arbitration
• International Arbitration to Resolve Tulbul Dispute: India
• India, Pakistan resume talks on Tulbul project
• Tulbul project: India-Pak talks today
• Tulbul project: India to provide more data to Pakistan

News Links and Updates- Arbitration and Contract

A twenty four year dispute finally got resolved when the Supreme Court in Oil and Natural Gas Corporation v. Wig Brothers Builders & Engineers Pvt. Ltd. partially set the award aside (actually set aside partially the judgements on the trial court and the high court making the award the rule of the court). Disputes arose between ONGC and Wig Brothers Builders and Engineers Pvt. Ltd. which were referred to a sole arbitrator in December 1986. Do check out this judgement from here.

In Dozco India P. Ltd. v. Doosan Infracore Co. Ltd., the arbitration clause read:

“Article 22. Governing Laws – 22.1 : This agreement shall be governed by and construed in accordance with the laws of The Republic of Korea.

Article 23. Arbitration - 23.1 : All disputes arising in connection with this Agreement shall be finally settled by arbitration in Seoul, Korea (or such other place as the parties may agree in writing), pursuant to the rules of agreement then in force of the International Chamber of Commerce.”

The application was for appointment of arbitrator under S 11(6) of the Arbitration and Conciliation Act, 1996. Counsel for Dozco vehemently argued that the Supreme Court would have jurisdiction to appoint the arbitrator and that the choice of venue was not the choice of seat of arbitration. The court rejected the contention of Dozco and held that the relevant law was the law of the Republic of Korea and the Supreme Court, in view of the arbitration clause, had no jurisdiction to appoint the arbitrator. The judgement can be accessed from here.

Kluwer Arbitration Blog contains an excellent post by an in-house lawyer on arbitration from the perspective of the consumers of arbitration. Do check out the post. Also check out his follow up post on transparency arbitrator performance and arbitrator selection.

Lex Arbitri Blog contains a write up on the Bombay High Court decision in Thyssen Krupp Industries India Pvt. Ltd. v. S.D. Industries. The case deals with the question as to whether delay in two party-appointed arbitrators agreeing on the third arbitrators after more than thirty days would make the appointment of the third arbitrator invalid. The court distinguished between “failure to agree” and “failure to appoint”. The link to this judgement is available in the said write up.

Kluwer Construction Blog has a post on “Track Changes” and contract negotiations. While negotiating contracts, parties generally work on a draft agreement and exchange it several times between them. They work on each other’s drafts in the “Track Changes” mode available in the word processors. There is a risk in completely relying on the version which the other party sends. Interesting post.

News: Vodafone International Holdings v. UoI

The Bombay High Court has ruled in favour of the Income Tax Department in the Vodafone Case regarding taxability of the transfer of its (share capital from Hutch)*. See here and here for newsreports. The judgement can be downloaded from here.

* Added after posting

News, Links and Comments

Kumkum Sen has written this article in Business Standard on the Sumitomo v. ONGC case we had discussed previously in this blog. Do check it out.

State of Himachal Pradesh v. Himachal Techno Engineers & Anr. (MANU/SC/0524/2010) is about how limitation period for challenge of arbitral award under S 34 ought to be calculated. Two conclusions from the decision are stated below:

• The date of receipt by a government entity on a holiday cannot be taken as the date of receipt of the award. The date of receipt is the working day immediately after the said holiday. So, the date of receipt in S 34 is the date of effective receipt.
• A month is not equivalent to thirty days. It refers to the actual days in a calendar month. Thus, for example, February would consist of 28 or 29 days. Similarly January would consist of 31 days. Thus, "within three months from 1st January" would mean "prior to or on 1st April".

Added after posting: Also do check out this article in the Arizona Journal of International and Comparative Law  [27 Ariz. J. Int'l & Comp. L. 1(2010)] criticising the law as it stands on S 56 of the Indian Contract Act, 1872.

Newslinks

Some news/ article links

Teapot as a place of arbitration in Indian Express
Mukesh Butani's article in the Business Standard on the use of arbitration in international taxation
Government has allotted Rs. 30 crores for the Kishenganga Dispute with Pakistan, says this Economic Times article.

Andhra Pradesh Tourism Development Corpn. v. Pampa Hotels Ltd.

Court: Supreme Court of India

Date: 20 April 2010

Bench: RV Raveendran & HL Dattu, JJ.

Case: Civil Appeal No. 3272/ 2007

This case is a interesting for two reasons:

(a) it deals with the question as to whether an arbitration agreement is binding on a party which is a company, when it (the arbitration clause contained in a contract) was signed by a person who sought to represent the said company even before the said company was incorporated.

(b) In an application filed under S. 11 of the Arbitration and Conciliation Act, 1996 (Act) for the appointment of arbitrator prior to the decision of the 7 Bench Supreme Court in SBP & Co. v. Patel Engineering, whether, the designate (and thereafter the appellate court) should decide issue as to validity of the arbitration agreement or should leave such a question to the arbitral tribunal? 

Facts:

March 2002: Andhra Pradesh Tourism Development Corpn. (APTDC) and Pampa Hotels Ltd (Pampa) allegedly entered into two agreements, Lease Agreement (LA) and Development & Management Agreement (DMA), for a particular purpose. The two agreements contained arbitration clauses.

April 2003: Pampa was incorporated in terms of the Companies Act, 1956.

April 2004: Alleged termination and taking over possession of property that formed the subject matter of the said transaction by APTDC. Disputes arose between the parties.

March 2005: Pampa filed an application for appointment of arbitrators.

16.08.2005: Designate of the Chief Justice appointed an arbitrator in terms of Section 11 of the Act.

26.10.2005: A 7 Bench Supreme Court, in SBP & Co. v. Patel Engineering, overruling the law as it stood then, held, inter alia, that issues regarding the validity of arbitration agreements raised in applications for appointment of arbitrator under Section 11 ought to be decided finally by the Chief Justice or his designate under Section 11 and such a decision will be binding on the parties and the arbitral tribunal.

22.11.2005: A Special Leave Petition was filed by APTDC challenging the decision of the said designate.

Questions before the Court:

Two questions were raised before the court:

(i) where the party seeking arbitration is a company which was not in existence on the date of the signing of the contract containing the arbitration agreement, whether it can be said that there is an arbitration agreement between the parties ?

(ii) whether the question as to the existence or validity of the. arbitration agreement, has to be decided by the Chief Justice/Designate when considering the petition under Section 11 of the Act or by the Arbitrator ?

Decision and Comment:

On the first question, the court held that since Pampa was incorporated in 2003, a year after the two agreements were signed, there was no contract, let alone an arbitration agreement between Pampa and APTDC. Hence, the court held that Pampa had not become a legal entity at the time of signing of the agreements and hence the arbitration agreement is not binding on Pampa.

On the second question, the court correctly pointed out that the same was answered by a seven bench Supreme Court in SBP & Co. v. Patel Engineering (SBP). However, since the order for appointment of the arbitral tribunal was made prior to SBP on the basis of the law as it was existing then (as per Konkan Railway v. Mehul Construction and Konkan Railway v. Rani Construction, the court cited SBP [para 46(xi) of SBP] where it was held that SBP would not affect appointments made prior to SBP and the decision would prospectively apply to future applications and would apply to pending applications. In view of the same, the court came to the conclusion that in the instant case, since the appointment was made prior to the decision in SBP, the appointment was final and valid, and could not be challenged under Article 136 of the Constitution of India.

The Supreme Court in this case was right when it said that APTDC could not challenge the appointment in view of the law as it stood prior to SBP. The law on this aspect prior to SBP was that questions regarding the validity of arbitration agreement could only be taken before the arbitral tribunal and not before the appointing court under Section 11 of the Act. (see Food Corporation of India v. Indian Council for Arbitration, Konkan Railway v. Mehul Construction and Konkan Railway v. Rani Construction).

Having identified the correct law that the court could not decide on the validity of arbitration agreement, why did the court decide the first question?  The court  unnecessarily hijacked the jurisdiction of the arbitral tribunal. The court should have ideally held that it did not have the jurisdiction to interfere and should have left it to the tribunal to decide the issue as to validity of the arbitration agreement. Instead the court held that the arbitrator would have to decide on the question on the basis of the decision of the court and such a decision would only be an academic exercise. In fact, deciding on such a question was considered by the Supreme Court in Maharshi Dayanand University v. Anand Co-op. [AIR 2007 SC 2441: (2007) 5 SCC 295] as unnecessary and improper ("We think that in the circumstances, this is a question that must be left to be decided by the arbitrator, since in terms of Section 16 of the Act the question can be raised before the arbitrator. Considering that we are dealing with the pre S.B.P. & Company (supra) dispensation, we do not think that it is necessary or proper for us to go into that question and decide the same in these proceedings"). Having cited Maharshi Dayanand University, I wonder why the court went ahead and decided on the issue relating to validity of the arbitration agreement.

Though the decision is not clear, the court seems to have cited Sarwan Kumar v. ML Aggarwal for supporting its case. However, in Sarwan Kumar, the Supreme Court seems to have only said that a court could invoke (that is, resort to) the doctrine of prospective overruling in its discretion when justice requires so. Sarwan Kumar does not support the stand of the supreme court to decide a matter when the statute had clearly allocated the jurisdiction to somebody else. This is not judicial activism, this is judicial hijacking!

KKV's Proposal to Set up Four Apex Non-Constitutional Appellate Courts

Yesterday's The Hindu contained the first part of Senior Advocate, KK Venugopal's proposal for divesting the Supreme Court of its ordinary appellate functions and instead make it solely the apex court on constitutional matters. KKV also proposes the establishment of four Non-constitutional final appellate courts in different parts of India.

Link to the first part of the article was given in yesterday's post. The second part of the article can be accessed from here. Law Resource India blog has posted KKV's RK Jain Memorial Lecture titled  "Towards a Holistic Restructuring of the Supreme Court of India", where KKV had mooted this proposal.

The Law Commission report in which similar proposal was made can be accessed from here.

News and Opinions

Today's The Hindu contains an editorial by senior advocate Mr. KK Venugopal on the need for restricting the functions of the Supreme Court of India as a mere constitutional court.

Economic Times reports that the judgement in RIL-RNRL gas dispute might be delivered by the Supreme Court sometime next week. We energy law guys are eagerly awaiting the decision as it would have a great impact on the exploration and production industry.

Another important news for the downstream petroleum industry and the crores of Indians is that an Empowered Group of Ministers would be deciding within a fortnight on whether to free prices of petrol and diesel from government control. 

SEBI Asks Stock Exchanges to Publish Regulatory Orders and Arbitral Awards

SEBI has, vide Circular SEBI/MRD/DSA-OIAE/CIR.-09/2010, dated 1 April 2010 asked all stock exchanges to publish regulatory orders and arbitral awards by Stock Exchanges in their websites.See here for arbitral awards under the Bye-laws of NSE.

Arbitration News

NLSIU and NUJS are reportedly in talks with arbitral institutions to set up courses for training students and others in arbitration. These institutions must be congratulated for taking steps towards creation of arbitral infrastructure (especially in terms of supply of competent and most importantly, honest, commercial arbitrators). However, it would do well if even the judges (who also form a part of the arbitral infrastructure) are trained in the principles of commercial arbitration. If we had adequate and competent arbital infrastructure, the Arbitration and Conciliation Act, 1996 might have worked.

P.S. I use the term 'arbitral infrastructure' to mean the participants, concepts, laws, rules, regulations, institutional rules etc that form a part of, or is involved, in the mechanism of arbitration as a means of settlement of commercial disputes. This would also include, inter alia, the judiciary (which performs supervisory and complementary functions vis-a-vis arbitration) arbitrators, arbitral institutions and their rules, the arbitration law and so on. (See, Gillian Hadfield, Law for a Flat World: Legal Infrastructure and the New Economy, where Hadfield introduces the concept of 'legal infrastructure'. Hadfield seems to restrict the meaning of the term to what the legal actors produce.)

News Reflections

News reports suggest that the CJI has nominated Justice SH Kapadia to be the next CJI. In a recent lecture titled "Developing Framework of Modern Litigation", Justice Kapadia is reported to have argued:

"Yesterday, I have reliably learnt that arbitration work and construction of contract is going back from India to abroad. We are likely to lose our investment if we are not aware of these concepts..."

Further, he seems to have said that his priority would be business and commercial laws. 

This is good news. We'll be, as usual, closely watching developments in contract and arbitration laws. Let us hope for the best.

Also, see this article in Business Standard which says that poor drafting of arbitration law has led to much confusion. On this aspect, and on the consultation paper, we'll be doing a lengthy post (or several small ones analysing the changes suggested. 

Consultation Paper on Amendments to the Arbitration & Conciliation Act, 1996

The Consultation Paper on the proposed amendments to the Arbitration and Conciliation Act, 1996 has can be downloaded from this link.

Amendments to the Arbitration & Conciliation Act, 1996?

A PTI news report suggests that the Ministry of Law  and Justice is considering amending the Arbitration & Conciliation Act, 1996 to include provisions on out-of-court settlement. The news report also indicates that the Ministry of Law  and Justice would release a consultation paper on the proposed amendments on 8th April 2010.

Another news report says that certain reforms on arbitration law were to be a part of the Commercial Division of High Courts Bill but such an idea has been dropped by the Ministry. The good news that this report is that sweeping changes are to be made in the way in which arbitration is conducted. One of the important changes that this consultation paper proposes seems to be the institutionalisation of institutional arbitration in India. High time, people. Another target of the said paper seems to be retired judges who charge extraordinarily huge fee. Readers might remember reading about ONGC's complaints about arbitration being an expensive option in this blog.

Right from 2001 (if not earlier), there have been proposals to amend/ reform the arbitration law. Nothing has happened so far. On this proposal, let us hope for the best.

Reflections

Disrespect of Parliament from within

Yesterday's The Hindu carried an evaluation of Indian Parliament by Vidya Subrahmaniam. Incidentally, a Private Member Bill was proposed to ensure that the Lok Sabha meets at least for a minimum of 100 days. Find the news here. See a report by PRS Legislative Research with statistics of the 2009 Parliament sessions here.

News

Pakistan SC Nullifies Presidential Order of Appointment of Judges. Read the news here. Read latest development here